COMMUNITIES FOR EQUITY, Plaintiff-Appellee, v. MICHIGAN HIGH SCHOOL ATHLETIC ASSOCIATION, Defendant-Appellant.
No. 02-1127
United States Court of Appeals for the Sixth Circuit
Argued: March 14, 2006; Decided and Filed: August 16, 2006
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 06a0299p.06. On Remand from the United States Supreme Court. No. 98-00479—Richard A. Enslen, District Judge.
COUNSEL
ARGUED: Maureen E. Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria, Virginia, for Appellee. ON BRIEF: Maureen E. Mahoney, LATHAM & WATKINS, Washington, D.C., for Appellant. Kristen Galles, EQUITY LEGAL, Alexandria, Virginia, for Appellee. Brad A. Banasik, MICHIGAN ASSOCIATION OF SCHOOL BOARDS, Lansing, Michigan, Jonathan E. Lauderbach, CURRIE KENDALL, Midland, Michigan, for Amici Curiae.
GILMAN, J., delivered the opinion of the court, in which COLE, J., joined. KENNEDY, J. (pp. 20-24), delivered a separate opinion concurring in part and dissenting in part.
OPINION
RONALD LEE GILMAN, Circuit Judge. Communities for Equity (CFE), a group comprised of parents and high school athletes that advocates on behalf of
I. BACKGROUND
The background of this case is thoroughly discussed in the findings of fact of the district court, Communities for Equity v. Michigan High School Athletic Association, 178 F. Supp. 2d 805, 807-846 (W.D. Mich. 2001), and in CFE I, 377 F.3d at 506-10. CFE‘s basic complaint is that MHSAA discriminates against female high-school athletes by scheduling girls’ sports to play in disadvantageous, nontraditional seasons. Our task is now to reevaluate this claim in light of the Supreme Court‘s GVR, which provides in relevant part as follows: “Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of our opinion in Rancho Palos Verdes v. Abrams. . . .” Mich. High School Athletic Ass‘n v. Cmtys. for Equity, 125 S. Ct. 1973 (2005).
On remand, MHSAA argues that, based on the Supreme Court‘s decision in Rancho Palos Verdes,
II. ANALYSIS
A. Standard of review
Constitutional and statutory interpretation questions are issues of law, which we review de novo. Ammex, Inc. v. United States, 367 F.3d 530, 533 (6th Cir. 2004). In contrast, we apply the “clearly erroneous” standard of review to the factual findings of the district court. Berger v. Medina City Sch. Dist., 348 F.3d 513, 519 (6th Cir. 2003).
B. The Effect of Rancho Palos Verdes
1. Implications of the GVR
MHSAA relies on the following description of the GVR procedure to argue that the result in CFE I must be altered:
Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is . . . potentially appropriate.
Lawrence v. Chater, 516 U.S. 163, 167 (1996) (holding that a GVR is “an appropriate exercise of [the Supreme Court‘s] discretionary certiorari jurisdiction“). Subsequent interpretations of that language, however, make clear that a GVR does not indicate, nor even suggest, that the lower court‘s decision was erroneous.
Other courts have also opined that a GVR does not necessarily indicate that the Supreme Court desires a different result. In Gonzales v. Justices of the Municipal Court of Boston, 420 F.3d 5, 7 (1st Cir. 2005), for example, the First Circuit pondered the implication of a GVR that instructed the court to reconsider an earlier holding in light of a recent Supreme Court decision. After discussing the above-quoted language from Lawrence, the Gonzales court opined:
It is important to remember, however, that a GVR order is neither an outright reversal nor an invitation to reversе; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it. . . . Consequently, we do not treat the Court‘s GVR order as a thinly-veiled direction to alter our course; rather, the order recognizes—as do we—that the Smith decision is pertinent and requires us to determine whether anything that the Smith Court said demands a different result.
Id. at 7-8; see also United States v. Norman, 427 F.3d 537, 538 n.1 (8th Cir. 2005) (“The GVR is not the equivalent of a reversal on the merits, however. Rather, the Court remands for the sake of judicial economy—so that the lower court can more fully consider the issue with the wisdom of the intervening development.“). The GVR therefore requires us to consider the effect of Rancho Palos Verdes on the present case, but it does not suggest that the Supreme Court believes that CFE I was wrongly decided.
2. Summary of the Sea Clammers/Rancho Palos Verdes doctrine
In order to analyze the issue highlighted by the GVR, a brief summary of
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
For plaintiffs, then,
Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1 (1981), is the seminal case discussing the intersection between statutory remedies and
The substantive statutes at issue in Sea Clammers—the
The Sea Clammers Court focused on Congress‘s intent, and held that the plaintiffs could not use
The Court interpreted the Sea Clammers doctrine a few years later in Smith v. Robinson, 468 U.S. 992 (1984). In Smith, the plaintiffs were the parents of a handicapped child who was allegedly being denied a “free appropriate public education.” They brought suit against the school district for relief under the
The Court then engaged in a thorough analysis of the
In light of the comprehensive naturе of the procedures and guarantees set out in the EHA and Congress’ express efforts to place on local and state education agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child, we find it difficult to believe that Congress also meant to leave undisturbed the ability of a handicapped child to go directly to court with an equal protection claim to a free appropriate public education. . . . [W]e think Congress’ intent is clear. Allowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress’ carefully tailored scheme.
Id. at 1011-12. In other words, Congress intended for the
Although the
Sea Clammers and the other cases on which the Supreme Court relied operate under the assumption that limitations placed by Congress upon statutory remedies are not to be evaded through
3. Application of the Sea Clammers/Rancho Palos Verdes doctrine to Title IX
As a result of the decision in Rancho Palos Verdes and the GVR, MHSAA argues that
Both Sea Clammers and Rancho Palos Verdes dealt with plaintiffs who attempted to enforce federal statutory rights through the “and laws” language of
This litigation strategy was explicitly disapproved of by the Supreme Court in both cases and forms the bedrock for the Sea Clammers principle. The key inquiry is whether Congress intended the remedies in the substantive statute to be exclusive. See Sea Clammers, 453 U.S. at 14 (“In view of these elaborate enforcement provisions, it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under [the water-pollution statutes].“) To allow the plaintiffs in such cases to benefit from the additional remedies available pursuant to
Unlike the plaintiffs in Sea Clammers and Rancho Palos Verdes, CFE invoked
In the present case, however, CFE asserts violations of
Because Sea Clammers and Rancho Palos Verdes concerned plaintiffs who attempted to recover only for violations of federal statutory law (as opposed to constitutional law) through the еnforcement mechanism of
Applying Smith to the case before us, the necessary factors to consider in order to determine if
A comprehensive discussion of both factors is not necessary so long as one factor is clearly not satisfied, which is the case here. See Lillard v. Shelby County Board of Education, 76 F.3d 716, 723 (6th Cir. 1996) (declining to engage in a protracted discussion of the first factor because the second one was not satisfied). So even if we were to hold that CFE‘s
Our dissenting colleague correctly notes that the Smith inquiry contains two prongs: (1) whether the constitutional claim pursuant to
This court in Lillard has already addressed the second prong of the Smith inquiry—whether
[W]hile in National Sea Clammers, allowing the section 1983 action to enforce the rights at issue would have effectively circumvented the implicit congressional intention to foreclose the private rights of action, here, the plaintiffs’ section 1983 action does not attempt either to circumvent Title IX procedures, or to gain remedies not available under Title IX. . . . Plainly, National Sea Clammers does not, on its face, stand for the proposition that a federal statutory scheme can preempt independently existing constitutional rights, which have cоntours distinct from the statutory claim, thus prohibiting a section 1983 action grounded in substantive due process. Instead, that case speaks only to whether federal statutory rights can be enforced both through the statute itself and through section 1983.
After distinguishing Sea Clammers, the Lillard court went on to characterize Smith as standing for the proposition that Congress can create a statutory vehicle as an alternative to enforcing constitutional rights pursuant to
The Lillard court concluded that, in contrast to the statutes at issue in Sea Clammers and Smith,
One can only conclude, therefore, that National Sea Clammers does not speak to Title IX, since there is no evidence in Title IX that ‘Congress intended to foreclose [a § 1983] action by providing an exclusive remedy within’ Title IX. Thus, even if the defendants’ argument had been directed at an attempt by the plaintiffs to enforce their Title IX rights, rather than their constitutional rights, through section 1983, National Sea Clammers would have provided no support.
Lillard, 76 F.3d at 723 (citation omitted).
Whereas the Supreme Court in Sea Clammers and Smith was able to highlight specific statutory remedies as evidence of Congress‘s intent for the substantive statutes to provide the exclusive means of relief, the Lillard court found no similar examples of congressional intent in
4. The precedential value and vitality of Lillard
Our dissenting colleague argues that we are not bound by Lillard because its discussion regarding the extent of the
The dissent‘s emphasis on one line of Lillard to the effect that Sea Clammers would not have required preemption “even if the defendants’ argument had been directed at an attempt by the plaintiffs to enforce their Title IX rights,” Dissenting Op. at 23, does not persuade us that Lillard‘s conclusion as to the extent of the
Although the Lillard court noted that the plaintiffs were seeking to enforce substantive due process rights that were “wholly independent” and “totally distinct” from the rights granted in
The dissent also relies on Smith, 468 U.S. at 1013-1014, as support for the proposition that “for each constitutional claim, a court must engage in a separate analysis of whether that claim, provided for by a statutory remedy, is precluded from being brought under
Lillard‘s analysis, however, was based on the fact that ”
Two of our sister circuits, moreover, have relied on Lillard to hold that
The bottom-line argument of both our dissenting colleague and MHSAA is that we should not follow Lillard. MHSAA contends that the GVR commands us to reconsider, and thus overturn, that decision. The dissent likewise articulates its disagreement with the reasoning of Lillard, arguing that the second prong of the Smith inquiry must include consideration of not only the express remedies in
MHSAA argues that “the clear implication of the Supreme Court‘s remand order is that it would like this Court to reconsider Lillard.” The Supreme Court, of course, did not mention Lillard in the GVR. Nor did the Court address
MHSAA‘s own characterization of the Sea Clammers holding—“that specific statutory remedies displace the general private right of action under
Rancho Palos Verdes did not alter the premise on which Sea Clammers was based and thus did not alter the vitality of Lillard. In Rancho Palos Verdes, as in the Sea Clammers and Smith cases, the primary question was whether Congress intended to foreclose reliance on
We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended
On the other hand, MHSAA fails to recognize the cases from the Eighth and Tenth Circuits that have agreed with this court‘s holding in Lillard. See Crawford, 109 F.3d at 1284; Seamons, 84 F.3d at 1234. The fact that the courts of appeal are evenly split on the issue of whether Congress intended
Because we have determined that Lillard is controlling precedent, we need not extol its virtues in order to reach a decision in the present case. We nevertheless defend Lillard‘s approach in response to the great weight that our dissenting colleague gives to Cannon v. University of Chicago, 441 U.S. 677, 689 (1979), in which the Supreme Court held that a private remedy was implicit in
Although the Supreme Court read an implied remedy into
Our cases have explained that evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute‘s creation of a “comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. . . . The provision of an express, private means of redress in the statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983.
544 U.S. at 120-21 (emphasis added). Although the Court later in its decision discusses the “availability of a private judicial remedy“—language that the dissenting opinion adopts—without making the distinction between explicit and implied remedies, the statute at issue in Rancho Palos Verdes (as well as in Sea Clammers and Smith) contains an explicit private remedy. We therefore read Rancho Palos Verdes as extending only to statutes that contain an explicit private remedy that is sufficiently comprehensive for us to infer that Congress intended the remedy to be exclusive.
The Supreme Court‘s decision in Franklin, 503 U.S. at 66, does not undermine our analysis. Franklin‘s conclusion was guidеd by the traditional presumption that all appropriate remedies may be implied in a statute unless Congress has explicitly indicated otherwise. See id. In other words, the Court relied on Congress‘s silence in implying the damages remedy in Franklin. Id. Congressional silence, though sufficient to find an implied remedy, cannot be equated with the carefully tailored remedies present in Sea Clammers, Smith, and Rancho Palos Verdes.
Justice Stevens‘s concurrence in Rancho Palos Verdes supports our determination that the Smith inquiry is distinct from the question of whether the Supreme Court may imply a private judicial remedy:
Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action. [citing Cannon, 441 U.S. 677]. Sometimes we ask whether, despite its silence, Congress intended us to enforce the pre-existing remedy provided in [42 U.S.C. § 1983]. And still other times, despite Congress’ inclusion of specific clauses designed specifically to preserve pre-existing remedies, we have nevertheless concluded that Congress impliedly foreclosed the § 1983 remedy. [citing Sea Clammers, 453 U.S. at 13].
Rancho Palos Verdes, 544 U.S. at 129 (Stevens, J., concurring in the judgment) (emphasis added). The Smith inquiry, as highlighted by Justice Stevens, is not an offshoot of the inquiry performed in Cannon. See also Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (“[W]hether a statutory violation may be enforced through § 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.“).
In short, we cannot agree with our dissenting colleague that
C. Equal Protection Clause
1. State action
The
In determining that MHSAA was a state actor, the district court relied upon the United States Supreme Court‘s decision in Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001). Cmtys. for Equity v. Mich. High Sch. Athletic Ass‘n, 178 F. Supp. 2d 805, 846-848 (W.D. Mich. 2001). The Brentwood Court addressed the issue of whether the Tennessee Secondary School Athletic Association (TSSAA), which was “incorporated to regulate interscholastic athletic competition among public and private secondary schools,” engaged in state action when it enforced one of its rules against a member school. Brentwood Academy, 531 U.S. at 290. Because of “the pervasive entwinement of state school officials in the structure of the association,” the Court held that the TSSAA‘s regulatory activity constituted state action. Id. at 291. The Court acknowledged that the analysis of whether state action existed was a “necessarily fact bound inquiry,” and noted that state action may be found only where there is “such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 295, 298 (citation and quotation marks omitted).
Public schools constituted 84% of TSSAA‘s membership, the Court noted, and public school faculty and administrators provided TSSAA‘s leadership. Id. at 298. The Court was further influenced by the fact that TSSAA‘s primary revenue source was gate receipts from tournaments between TSSAA member schools. Id. at 299. In conclusion, the Court stated that,
to the extent of 84% of its membership, the Association is an organization of public schools represented by their officials acting in their official capacity to provide an integral element of secondary public schooling. There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms.
Id. at 299-300. The Court also found significant that TSSAA ministerial employees were treated like stаte employees by virtue of their eligibility for membership in the state retirement system. Id. at 300.
MHSAA, like TSSAA, is comprised primarily of public schools, and MHSAA‘s leadership is dominated by public school teachers, administrators, and officials. Students at MHSAA-member schools, like Tennessee students, may satisfy physical education requirements for high school by participating in MHSAA-sanctioned interscholastic sports. Because MHSAA, like TSSAA, is so entwined with the public schools and the state of Michigan, and because there is “such a close nexus between the State and the challenged action,” MHSAA is a state actor. Tellingly, MHSAA argued earlier in this litigation, before the Supreme Court reversed the Sixth Circuit‘s opinion in Brentwood Academy, that “the nature and function of the MHSAA is virtually identical to that of the TSSAA.” Cmtys. for Equity, 178 F. Supp. 2d at 847. MHSAA, in sum, has failed to present any compelling argument to distinguish itself from TSSAA. We therefore uphold the determination of the district court that MHSAA is a state actor.
2. Denial of equal protection
The Supreme Court has held that “[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive’ justification for that action.” United States v. Virginia, 518 U.S. 515, 531 (1996) (dealing with the admission of women to the Virginia Military Institute, hereafter referred to as V.M.I.). In V.M.I., the Court further explained the state‘s burden under the heightened standard for gender-based classifications:
To summarize the Court‘s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.
Id. at 532-33 (citation and quotation marks omitted).
The district court analyzed the scheduling of the Michigan athletic seasons under V.M.I.‘s standard, determining that MHSAA had to show that scheduling team sports in different seasons based on gender “serves important governmental objectives and that this scheduling is substantially related to the achievement of those objectives.” Cmtys. for Equity, 178 F.Supp.2d at 850. In addition, the district court noted that MHSAA‘s justifications must be “exceedingly persuasive.” Id. MHSAA asserted that the scheduling decisions sought to maximize girls’ and boys’ participation in athletics, arguing that the scheduling system maximizes opportunities for participation “by creating optimal use of existing facilities, officials and coaches, thereby permitting more teams in a sport or more spots on a team.” Id.
Conceding that MHSAA‘s logisticаl concerns were important, the district court concluded that MHSAA had failed to demonstrate, pursuant to the standards set forth in V.M.I., that discriminatory scheduling was “‘substantially related’ to the achievement of those asserted objectives.” Id. at 850-51. MHSAA‘s reliance upon anecdotal and “weak circumstantial” evidence was found insufficient to carry MHSAA‘s burden. The district court also pointed out that even if MHSAA had sufficiently proven their point about athletic participation opportunities, “that would not justify forcing girls to bear all of the disadvantageous playing seasons alone to solve the logistical problems.” Id. at 851.
On appeal, MHSAA reiterates its argument made below that the purpose of separate athletic seasons for boys and girls is to maximize opportunities for athletic participation. MHSAA asserts that statistics showing that Michigan has a higher number of female participants in high school athletics than most states satisfies the requirements of V.M.I. It also argues that the “unavoidable consequence of separate teams was accommodation of twice the number of teams, games and participants.” Although we acknowledge that schools in Michigan may have limited facilities, MHSAA‘s claim that the inadequate facilities require the female athletes to always play in the disadvantageous seasons is without merit. MHSAA could, after all, rearrange the schedules аnd require some of the male sports to play in disadvantageous seasons without increasing the overall use of the facilities.
The evidence offered by MHSAA, moreover, does not establish that separate seasons for boys and girls—let alone scheduling that results in the girls bearing all of the burden of playing during disadvantageous seasons—maximizes opportunities for participation. MHSAA simply states that bare participation statistics “are the link showing that separate seasons are substantially related to maximum participation.” But a large gross-participation number alone does not demonstrate that discriminatory scheduling of boys’ and girls’ athletic seasons is substantially related to the achievement of important government objectives.
Disparate treatment based upon facially gender-based classifications evidences an intent to treat the two groups differently. V.M.I. imposes no requirement upon CFE to show that an evil, discriminatory motive animated MHSAA‘s scheduling of different athletic seasons for boys and girls. The cases that MHSAA cites to the contrary, such as Hernandez v. New York, 500 U.S. 352 (1991), are inapposite because they involve facially neutral classifications, rather than facially gender-based classifications. In Hernandez, for example, the Court analyzed a racially neutral explanation for a prosecutor‘s exercise of peremptory strikes, noting that “[u]nless a discriminatory intent is inherent in the prosecutor‘s explanation, the reason offered will be deemed race neutral.” Id. at 360. The facts of the present case are quite different from those of Hernandez, and proof of a discriminatory motive is not necessary.
MHSAA asserts, however, that the “only facial classification at work in this case was the original decision to have separate high school sports teams for boys and girls.” Once the legality of separate programs has been conceded, MHSAA argues, issues regarding the implementation of those programs do not classify the players by gender. Conceding that separating boys and girls sports is a facial classification, MHSAA claims that other issues (scheduling, uniforms, coaches, etc.) are not prohibited facial classifications. If we were to find that any such difference between girls and boys sports is a facial classification, MHSAA argues, this would lead to absurd results. Facial classifications engender a presumption of discriminatory purpose, and MHSAA asserts that this is because there is typically a reason to infer antipathy—a reason, it claims, not present here.
MHSAA‘s characterization of the issue, however, misses the point. The issue is not whether any difference between male and female high school sports is deserving of being classified as a case of disparate treatment. Rather, the issue is whether the seasonal scheduling differences on the basis of gender that result in unequal treatment of women in comparison to men is considered disparate treatment. Disparate treatment does not arise from any and all differences in treatment; it occurs only where the offending party “treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Int‘l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (emphasis added). Thus, the reason that scheduling differences properly receive disparate treatment analysis based on facial discrimination is not just because boys and girls are separated, but because they are separated and treated unequally in the scheduling of seasons.
In sum, MHSAA has failed to satisfy its burden of justifying its discriminatory scheduling practices under V.M.I. We therefore uphold the district court‘s grant of relief to CFE on the equal protection claim.
1. Applicability of Title IX
[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .
Before
For the purposes of this chapter, the term “program or activity” and “program” mean all of the operations of –
. . .
(2) (B) a local educational agency, system of vocational education, or other school system; . . . any part of which is extended Federal financial assistance.
Horner, 43 F.3d at 271 (quoting
The legislative history concerning this amendment explains that Congress sought “to restore the broad scope of coverage and to clarify the application of title IX of the Education Amendments of 1972 . . . .” S. Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 3, 6. As stated in Horner, “the definitions of ‘program or activity’ and ‘program’ make clear that discrimination is prohibited throughout entire agencies or institutions if any part receives Federal financial assistance.” 43 F.3d at 271 (quoting S. Rep. No. 64, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 3, 6) (quotation marks omitted).
MHSAA‘s brief on remand concedes that it is subject to
2. Intentional discrimination under Title IX
MHSAA contends that the district court erred in finding that MHSAA violated
does not require proof that the MHSAA intended to hurt girls and chose the scheduling system as a way to do that. The Court‘s task is to analyze the resulting
athletic opportunities for girls and boys from the different treatment that they experience by being placed in different athletic seasons, and if girls receive unequal opportunities, Title IX has been violated.
Cmtys. for Equity, 178 F. Supp. 2d at 856. Horner v. Kentucky High School Athletic Association, 206 F.3d 685, 692 (6th Cir. 2000), relied upon by MHSAA, is inapposite because it addressed a facially neutral policy challenged under a disparate-impact theory. The policy challenged in Horner allowed the introduction of a new sport only if 25% of the member schools indicated a willingness to participate. This is quite different than the explicit gender-based scheduling policy in effect here. We therefore agree with the district court that proof of a discriminatory motive is not required for a
E. Michigan‘s Elliott-Larsen Civil Rights Act
MHSAA‘s next argument addresses Michigan‘s
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of . . . sex . . . .
The district court determined that MHSAA constitutes a “person” under the statute, defined as “[a]n individual, agent, association, corporation, . . . unincorporated association, the state or a political subdivision of the state, or any agency of the state, or any other legal or commercial entity.”
“Place of public accommodation” is defined in the statute as
a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public.
And “public service” is defined as
a public facility, department, agenсy, board, or commission, owned, operated, or managed by or on behalf of the state, a political subdivision, or an agency thereof or a tax exempt private agency established to provide service to the public . . . .
MHSAA argues that the district court erred in finding that MHSAA serves as a “public accommodation” and provides a “public service.” The case most directly on point on these issues is Rogers v. International Association of Lions Clubs, 636 F. Supp. 1476, 1479 (E.D. Mich. 1986), where the district court found that a Lions Club qualified as a place of public accommodation providing public services. The Lions Club qualified as “a place of public accommodation” because
The district court in Rogers further considered whether the Lions Club provided a “public service.” 636 F. Supp. at 1479. After noting that the Club is a tax-exempt, nonprofit private agency whose stated purpose is to provide volunteer public service through its members, the court concluded that the Club provides a public service. Id. MHSAA is likewisе a tax-exempt entity that provides a service to the public—“the organization of interscholastic athletics in the state‘s schools.” Cmtys. for Equity, 178 F.Supp.2d at 859. The district court therefore determined that MHSAA qualifies as providing a “public service” under Michigan law.
We conclude that the district court did not err in finding that MHSAA, like the Lions Club discussed in Rogers, qualifies as “providing a public service” and as a “place of public accommodation.” MHSAA‘s unsupported contentions to the contrary are not persuasive. It cites Sandison v. Michigan High School Athletic Association, 64 F.3d 1026, 1036 (6th Cir. 1995), for example, to support its argument that it is not a “place of public accommodation.” Sandison, however, is inapposite. Although this court in Sandison held that MHSAA was not a “place of public accommodation” within the meaning of the
F. Compliance plan
After finding that MHSAA‘s scheduling of high school athletic seasons violated the
After MHSAA filed its proposed compliance plan, CFE and the Department of Justiсe filed responses, arguing that MHSAA‘s plan failed to remedy the inequities that existed in the scheduling of Michigan‘s high school athletics seasons. The Department of Justice noted that “the proposed Compliance Plan would perpetuate sex discrimination by requiring more than three times as many girls as boys to play in disadvantageous seasons and by addressing only sports, with the exception of boys’ golf, offered by less than half of MHSAA‘s member schools.”
In August of 2002, the district court rejected MHSAA‘s proposed plan as not achieving equality and offered MHSAA three options:
(1) combine all sports seasons so both sexes’ teams play in the same season . . . and move girls’ volleyball to its advantageous season of fall; or (2) reverse girls’ basketball and volleyball; and in the Lower Peninsula, reverse two girls’ seasons with two boys’ seasons from among golf, tennis, swimming, and soccer; and in the Upper Peninsula, keep combined seasons in golf and swimming and reverse seasons in either tennis or soccer; or otherwise treat the Upper Peninsula the same as the
Lower Peninsula; or (3) reverse girls’ basketball and volleyball; and in both peninsulas, combine seasons in two sports, and reverse seasons in one of the two remaining sports at issue.
MHSAA selected the second option in the amended compliance plan that it filed with the district court in October of 2002.
Although MHSAA argues that the district court erred in rejecting its initial cоmpliance plan, we must determine whether appellate jurisdiction exists to hear the issue before we can address the merits of this argument. CFE contends that MHSAA failed to appeal the compliance-plan order because MHSAA‘s January 2002 notice of appeal references only the opinion, judgment, and injunctive order entered in December of 2001. MHSAA did not file an amended notice of appeal following the district court‘s rejection of MHSAA‘s initial compliance plan in August of 2002.
We lack jurisdiction over issues that are the subject of post-judgment motions when those issues are not included in a notice of appeal. In United States v. Warner, 10 F.3d 1236 (6th Cir. 1993), for example, this court held that “by being a distinct appealable order from which a separate appeal must be taken,” a denial of a motion for new trial
is subject to the requirement that the appeal be taken within ten days from the docketing of the district court‘s order. Absent an appeal within this time, or an extension from the district court for filing the notice of appeal, this court, being without authority to extend the time for filing a notice of appeal, will lack the jurisdiction to hear the appeal.
Id. at 1240. Because MHSAA did not file an amended notice of appeal following the district court‘s rejection of the initial compliance plan, we have no jurisdiction to consider MHSAA‘s argument concerning thе same.
G. Judge Enslen‘s refusal to recuse himself
In 1983, MHSAA filed suit against the United States Department of Education and the Office of Civil Rights in the case of Michigan High School Athletic Association v. Bell, No. 83-CV-6250-AA (E.D. Mich. 1983), seeking a declaratory judgment and injunctive relief. Judge Enslen, the district court judge in the present case, recused himself from the 1983 case for reasons that no one, including Judge Enslen, can presently recall. MHSAA nevertheless argues that because Judge Enslen recused himself then, he should have recused himself now.
The evidence of record does not explain why Judge Enslen recused himself from the 1983 case. And in denying MHSAA‘s motion for disqualification in this case, Judge Enslen stated that he could think of no reason why he would be unable to remain impartial. Judge Enslen also noted that “only one of the 21 Defendants in the current case was a party to the 1983 case, and none of the class Plaintiffs in the current case was involved in the 1983 case.” Because MHSAA failed to provide any valid basis for Judge Enslen‘s recusal, we uphold the ruling of the district court denying its motion. See Person v. General Motors Corp., 730 F.Supp. 516, 518-19 (W.D.N.Y. 1990) (stating that a judge‘s recusal in a prior case involving a party is not alone sufficient for disqualification in a later case involving that party).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
CONCURRING IN PART, DISSENTING IN PART
KENNEDY, Circuit Judge, concurring in part and dissenting in part. I agree with the majority‘s holding that MHSAA‘s scheduling of high school athletic seasons violates
I. The Effect of Lillard
The majority finds that Lillard v. Shelby County, 76 F.3d 716 (6th Cir. 1996), is controlling and thus that the issue of whether
Lillard was a sexual harassment case. This case is one of sexual discrimination. In Lillard the issue was whether
A victim of sexual harassment by a teacher would have several constitutional Section 1983 claims against the teacher and the school district. She might bring claims based on: (1) the Fourteenth Amendment right to due process, alleging a denial of a fair hearing in which to bring her complaint; (2) the liberty interest in bodily integrity under the substantive due process right in the Fourteenth Amendment; and (3) the right under the Equal Protection Clause of the Fourteenth Amendment to be free from discrimination on the basis of sex. Because Title IX confers on plaintiffs a right to be free from discrimination on the basis of sex, the plaintiff‘s third Constitution-based Section 1983 claim is “virtually identical” to the right conferred by Title IX...
A court confronted with these remaining Constitution-based Section 1983 clаims must determine whether either claim is virtually identical to the right under Title IX against discrimination on the basis of sex...[N]either procedural nor substantive due process rights are identical to, or even virtually identical to, rights under Title IX, which affords protection against discrimination on the basis of sex. Consequently, if a plaintiff brings procedural and substantive due process claims under Section 1983, those claims would not be precluded by Title IX, for they do not satisfy the first prong of the Smith test.
Zwibelman, Michael, Why Title IX Does Not Preclude Section 1983 Claims, 65 U. Chi. L. Rev. 1465, 1479 (Fall 1998); see also Burke, Beth, To Preclude or Not to Preclude, 78 Wash. U. L.Q. 1487, 1512 (noting that some courts fail to apply properly the “virtually identical” prong of the Smith test by “combin[ing] all the alleged constitutional violations without analyzing each
I believe we are required to do such a separate analysis under the Supreme Court‘s decision in Smith v. Robinson, 468 U.S. 992 (1984). In Smith, the petitioners alleged violations of the
Even though Lillard addressed the preclusion of different right, the majority holds we are bound by it. I see several problems with not addressing the precise issue before us. First, it contradicts the procedure set forth by the Court in Smith. For, if finding what Congress intended with respect to one constitutional claim - say equal protection - is enough to find what Congress intended with respect to all constitutional claims, then why was the Court prepared to do two separate analyses?1 In other words, if the majority‘s position is correct, that a holding that Congress did not intend a statute to be the “exclusive avenue” for bringing one type of constitutional claim applies to all constitutional claims brought pursuant to
Secondly, to say that what Congress intended with respect to one type of constitutional claim is what Congress meant with respect to all, is an overly-simplistic justification for the majority‘s decision. When ascertaining Congress’ intent, I believe we have to do so with the precise rights in mind. I do not think one can assume that simply because Congress did not intend to preclude substantive due process claims, it did not intend to preclude equal protection claims. It seems clear to me that Congress could intend to preclude one type of constitutional claim, by providing a statutory remedy for it, but not others.
Third, it is important to point out that the court in Lillard did not indicate its holding was to be extended to the preclusion of rights other than substantive due process. The court in Lillard concluded that the rights were not “virtually identical” but then went on to discuss, at length, congressional intent. The court reasoned that because the private right of action found in
Fоr the foregoing reasons, I believe that we need to engage in a separate analysis as required by the Supreme Court in Smith and that we must address this issue as one of first impression in this circuit.
II. Applying Smith v. Robinson‘s Two-Prong Test
In Smith, the Supreme Court established a two-prong test for determining whether
As a preliminary matter, I want to express my disagreement with the rationale behind one holding in Lillard that
In seeking to correct what it considered to be an unacceptable decision on our part in Grove City College v. Bell, Congress made no effort to restrict the right of action recognized in Cannon and ratified in the 1986 Act or to alter the traditional presumption in favor of any appropriate relief for violation of a federal right. We cannot say, therefore, that Congress has limited the remedies available to a complainant in a suit brought under Title IX.
Id. at 73. Thus, I am not persuaded by the argument that because the private right of action in
In ascertaining Cоngress’ intent in this case, I believe we should first look to the decision the Supreme Court asked us to consider on remand, Rancho Palos Verdes, 125 S.Ct. 1453 (2005). I agree with the majority‘s finding that the case before us is a Smith case rather than a Sea Clammers case in that it deals with both constitutional and statutory rights. Further, I agree that Rancho is a Sea Clammers decision. However, I still believe that we should consider the Court‘s holding in Rancho, specifically, the potential reach of the Court‘s holding.
Prior to Rancho, courts applied no inference regarding congressional intent. The Court in Rancho changed that and, where a judicial remedy exists in a statute, made it much easier to infer that Congress intended to preclude reliance on
We have found § 1983 unavailable to remedy violations of federal statutory rights in two cases: Sea Clammers and Smith. Both of those decisions rested upon the existence of more restrictive remedies provided in the violated statute itself...
The Government as amicus, joined by the City, urges us to hold that the availability of a private judicial remedy is nоt merely indicative of, but conclusively establishes, a congressional intent to preclude § 1983 relief. We decline to do so.
Rancho Palos Verdes, 125 S.Ct. at 1459 (citations omitted). Because the Court analyzed Sea Clammers (only statutory claims) and Smith (statutory and constitutional claims) and their progeny and found that in both types of cases the pivotal issue was whether the statute at issue provides for a private judicial remedy, the discussion leading up to the establishment of the inference adopted in Rancho suggests that it does not apply solely to Sea Clammers cases. There is an argument that such an inference applies to Smith cases as well. Yet, as this case can be decided under the standard set forth in Smith, I find it unnecessary to apply the Rancho holding to decide this case; however, I believe the reasoning in Rancho suggests we should conclude that Congress, by enacting
Again, under the test in Smith, we must ask whether Congress intended
[I]n all of the cases in which we have held that § 1983 is available for a violation of a federal statute, we have emphasized that the statute at issue, in contrast to those in Sea Clammers and Smith, did not provide a private judicial remedy (or, in most cases, even a private administrative remedy) for the rights violated.
Rancho, 125 S.Ct. at 1459.
Notes
There are two important distinctions that make the National Sea Clammers doctrine inapposite here. First, and most crucial, is the fact that in National Sea Clammers, the plaintiffs’ section 1983 action sought to enforce the rights created by federal statutes which did not provide for a private right of action, while here, the plaintiffs’ section 1983 claims are premised on alleged constitutional violations. Thus, while in National Sea Clammers, allowing the section 1983 action to enforce the rights at issue would have effectively circumvented the implicit congressional intention to foreclose private rights of action, here, the plaintiffs’ section 1983 action does not attempt either to circumvent Title IX procedures, or to gain remedies not available under Title IX...Instead, the plaintiffs seek to enforce wholly independent, and totally distinct, substantive due process rights.Lillard, 76 F.3d at 722-723 (citation omitted).